By Professor Lorna Woods
On 7 March 2012, Professor Sir Nigel Rodley of the School of Law and Human Rights Centre at Essex University and a Member of the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights gave a seminar on General Comment 34 on Article 19 of the ICCPR. The following is a summary.
Originally, general comments were introduced as it was difficult to reach consensus in the country-specific reports and evaluations carried out. While concluding that observations may now be possible, in the post-cold-war environment, general comments are established and have persuasive stature.
General Comment 34 replaces General Comment 10, a much shorter document. The revisiting of the general comment was triggered by the problem of how to deal with “defamation of religion”, which had led to political tension. Rather than leave this issue as a political one, transforming the issues into technical legal questions operates to diffuse this tension.
The new general comment was adopted in the summer of 2011. The new general comment reflects a mixture of points drawn from concluding observations, case law and other elements. So this general comment is not just codification of what went before. There was no case law, for example, on defamation of religion.
General Comment 34 (GC34) refers to Article 19 (1) and (2) of the ICCPR, made up of two separate rights: the right to opinions and the right to freedom of expression. Article 19 (3) constitutes the “clawback” clauses and relates only to Article 19 (2). General Comment 34 starts by providing a conceptual view of Article 19 ICCPR and its value. Paragraph 2 of the GC34 states:
“Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.”
This is one of the first attempts to delineate the conceptual underpinnings of Article 19 and to identify the “infrastructure” aspect of the right, a point which has developed further in paragraph 4.
The emphasis is on the importance of the substantive rights to the point that there is scepticism about claims to limit those rights. So, paragraph 5 notes that a reservation to Article 19 (1) “would be incompatible with the object and purpose of the Covenant”.
Further in paragraph 9, the General Comments states that this “is a right to which the Covenant permits no exception or restriction”. Even though it is not immune from derogation under the ICCPR on the text of the document, the Human Rights Council (HRC) has taken the view that any limitation is strictly limited.
Given the impetus for General Comment 34, the comment itself emphasises that the right in Article 19 (2) covers “even expression may be regarded as deeply offensive” (subject always to Article 19 (3) and Article 20). This is a reaffirmation of the point that not liking a point of view, or rather its expression, is not justification for limiting that expression.
Paragraph 13 introduces the role of the media: “a free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of the other Covenant rights.” Note, however, that this is not freedom of the press as such. The right is right of individuals, but for the individual to enjoy their rights, a free press is necessary.
Under the ICCPR, entities do not have human rights (contrast with the position under the ECHR). The general comment includes some positive obligations in relation to the media regarding the obligations to ensure diversity and plurality (see paragraphs 14 and 40). The general comment also notes the value of public service broadcasting and its need for adequate funding and independence (para 16). The General Comment expresses these points in abstract terms, however; how such objectives would be achieved in practice is a matter for the States parties.
Paragraph 19 on access to information apparently goes further than expected. In general terms, the scope of rights is to some degree limited both by the political acceptance by the states parties themselves and also the terms of the Vienna Convention. Paragraph 19 comes close to saying that there should be some form of Freedom of Information Act – although there is clear room to manoeuvre as to its form, the end point is clear.
As noted above, the approach of the HRC has been to try to claw back the claw-back clause, through the use of necessity and proportionality with regard to the particular goals identified in Article 19 (3). This approach is reaffirmed in paragraph 22.
Note Article 20 of the ICCPR deals with hate speech and allows its limitation. There is a requirement that it is incitement to discrimination, however: hatred on its own is not enough. Despite the way Article 20 has been phrased, the approach here is to treat Article 20 ICCPR as analogous or even part of Article 19 (3).
It is seen as a justification rather than as an obligation. The General Comment looks at obvious examples where state parties have sought to abuse the claw-back (see page 30). In this section there is an emphasis on the need to ensure political discourse (see Article 25 ICCPR). While this might seem obvious, sadly it is often not, as can be seen in the recent presidential elections in Russia criticised by the OSCE.
There are some sections of the general comment where particular behaviour has not been expressly prohibited. Paragraph 37 identifies the prohibition of the publication of opinion polls before elections. While such rules may have a legitimate purpose they must comply with paragraph 3.
Rules restricting criticism of authority have been abused widely. Paragraph 38 of the general comment deals with these sorts of rules and emphasises that the identity of the person or body who has been impugned is not relevant to the question of whether the comment is acceptable. These points are also made with regard to criminal defamation in paragraphs 42 and 47.
A feature of the modern world is the war on terror and this has led to many states enacting laws designed to facilitate counter-terrorism. There is, however, a problem of definition. Again, the General Comment does not exclude the possibility of such laws being legitimate acts, but it specifies that they “should be clearly defined to ensure that they do not lead to an unnecessary or disproportionate interference with freedom of expression”.
Paragraph 48 finally deals with the issue of religion and religious defamation. The point of departure is that criticism is acceptable. Insofar as laws restrict criticism, the general comment requires so those laws to avoid discrimination between religions. This effectively catches most blasphemy laws which tend to discriminate between religions; that is to protect one religion over others.
Paragraph 49 specifies that “laws that penalise expression of opinions about historical facts are incompatible with the obligation is that the covenant imposes on states parties in relation to the respect for freedom of opinion and expression”. This covers Holocaust denial. Again, the approach is to limit circumstances under which such laws operate: they must comply with the terms of paragraph 3 or Article 20. In practice, prosecution tends to be in cases where those who have expressed such views have intended to stir up hatred. Context therefore can be more important than the words used.